Case C-117/03

Società Italiana Dragaggi SpA and Others

v

Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia

(Reference for a preliminary ruling from the Consiglio di Stato)

(Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – National list of sites eligible for identification as sites of Community importance – Conservation measures)

Opinion of Advocate General Kokott delivered on 8 July 2004

Judgment of the Court (Second Chamber), 13 January 2005

Summary of the Judgment

Environment – Conservation of natural habitats and of wild fauna and flora – Directive 92/43 – Special areas of conservation – Sites, included in the national lists, eligible for identification as sites of Community importance – Protective measures – Inapplicability of the measures prescribed in Article 6(2), (3) and (4) – Obligation on the Member States to safeguard their ecological interest

(Council Directive 92/43, Arts 4(5), and 6(2),(3) and (4))

On a proper construction of Article 4(5) of Directive 92/43 on the conservation of natural habitats and of wild fauna and flora, the protective measures prescribed in Article 6(2), (3) and (4) of that directive are required only as regards sites which, in accordance with the third subparagraph of Article 4(2) of the directive, are on the list of sites selected as sites of Community importance adopted by the Commission in accordance with the procedure laid down in Article 21 of the directive. Consequently, those measures do not apply to the sites included in the national lists transmitted to the Commission pursuant to Article 4(1) of the directive.

However, by virtue of that directive, the Member States are required, as regards the latter sites, which are eligible for identification as sites of Community importance, and in particular as regards those hosting priority natural habitat types or priority species, to take protective measures that are appropriate, from the point of view of the directive’s conservation objective, for the purpose of safeguarding the relevant ecological interest which those sites have at national level.

(see paras 21-22, 25, 28-30, operative part)

JUDGMENT OF THE COURT (Second Chamber) 13 January 2005 (1)

(Directive 92/43/EEC – Conservation of natural habitats – Wild fauna and flora – National list of sites eligible for identification as sites of Community importance – Conservation measures)

In Case C-117/03, REFERENCE for a preliminary ruling under Article 234 EC from the Consiglio di Stato (Italy), made by order of 17 December 2002, received at the Court on 18 March 2003, in the proceedings

v

THE COURT (Second Chamber),,

composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet, N. Colneric and J.N. Cunha Rodrigues, Judges,

Advocate General: J. Kokott,

having regard to the written procedure and further to the hearing on

after hearing the Opinion of the Advocate General at the sitting on 8 July 2004,

gives the following

‘1.

The list shall be transmitted to the Commission, within three years of the notification of this Directive, together with information on each site. …

2.Member States whose sites hosting one or more priority natural habitat types and priority species represent more than 5% of their national territory may, in agreement with the Commission, request that the criteria listed in Annex III (Stage 2) be applied more flexibly in selecting all the sites of Community importance in their territory.

The list of sites selected as sites of Community importance, identifying those which host one or more priority natural habitat types or priority species, shall be adopted by the Commission in accordance with the procedure laid down in Article 21.

3.

4.

5.‘…

2.

3.

4.Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.’

‘Is Article 4(5) of Directive 92/43 of 21 May 1992 to be interpreted as meaning that the measures under Article 6 and, in particular, under Article 6(3) of that directive are mandatory for the Member States only after final approval at Community level of the list of sites under Article 21 or, alternatively, in addition to determination of the ordinary commencement date of conservation measures, must a distinction be drawn between declaratory listing and determinative listing (including in the first category the listing of priority sites) with the result that, in order to ensure the effectiveness of the directive, where a Member State identifies a site of Community importance sustaining priority natural habitat types or species, there must be considered to be an obligation to carry out an assessment of plans and projects with a significant effect on the site even before the Commission draws up the draft list of sites or the adoption of the final version of that list pursuant to Article 21 of the directive and, in fact, with effect from the drawing up of the national list?’

On those grounds, the Court (Second Chamber) rules as follows:

Signatures.